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The heavy lifting begins

Nothing is foolproof. Some fool will find a way to thwart the most clever of schemes and devices.

But that doesn't mean you should just leave the door unlocked, shrug and walk away.

After months of exhaustive research, interviews, filing public records requests, prodding, probing and making himself a royal pest over at the courthouse, Review-Journal special projects reporter Frank Geary this past February began a series of articles detailing the surprisingly lackadaisical manner in which county judges had been sealing information in public court records from public view. There was no rhyme, no reason, no justification and in many cases no fingerprints -- meaning it could not even be determined which judge sealed a record, much less why.

What Geary found was that many judges believed they had the ultimate authority to veil anything, anytime, from everyone for any or no reason at all.

In most cases, Geary's prodding could produce no clue as to what was sealed, but in others he was able to sketch a vague outline of a pattern that suggested favoritism for insiders, the wealthy and the powerful. In order to do that he talked to judges, lawyers, clerks, defendants and plaintiffs. He researched business filings, annual corporate filings, criminal records, real estate records, Internet sites and more.

His articles were eye-opening. To my surprise, they opened the right eyes. They opened the eyes of men of conscience who saw a potential for injustice and were in a position to do something about it.

Quickly a bill was introduced in the state Legislature to outline when, why and how judges could seal court records, and the state Supreme Court announced in was creating a commission to write new rules that could accomplish the same thing. The lawmakers eventually acquiesced to the lawyers.

But unlike the glacial speed we've come to expect from our court system, the assigned commission sprinted out of the gate, elbowing aside recalcitrant judges and lawyers reluctant to surrender their power to shroud. Within a matter of months they produced a document detailing a system for keeping truly private matters private and doing so in an equitable manner that includes public oversight and a means to appeal.

The resulting document is clear in its intent, stating, "All court records in civil actions are available to the public, except as otherwise provided in these rules or by statute."

It also spells out grounds for sealing information, meaning that a mere agreement by the parties involved is insufficient. It also states clearly, "In no event may the sealing or redaction have the purpose of concealing a public hazard."

The state Supreme Court convened on New Year's Eve and quickly adopted the new rules. Not only that, but the court made the rules applicable the next day rather than the customary 60 days later. Much of the credit for this rapid response goes to Justices William Maupin and James Hardesty. They saw a problem and they found a remedy.

Upon approval of the new rules, Justice Maupin remarked, "This particular initiative underscores the court's belief in open government and our commitment to preserve the public nature of the business of the judicial branch, including its records."

Now the heavy lifting begins.

It was 81-year-old Ben Franklin who is famously said to have remarked at the end of the Constitutional Convention, when asked what kind of government the convention had wrought: "A republic, if you can keep it."

The words were down on paper, but over the years the meaning of those words has been reinterpreted. The powers of the various branches have ebbed and flowed with the parsing of words.

For instance, I suspect the Federalists would have blanched at the suggestion Congress could order states to establish certain highway speed limits or a certain drinking age or certain air quality levels under the threat of having federal funding denied.

So it will be with the new court rules -- in the hands of talented fools.

The Review-Journal's reporters will try to keep an eye on things, but I call on you, our readers, to alert us if you see something amiss with this and other matters that should be subject to public scrutiny.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.

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